Read Editorial with D2G – Ep (334)

In Read Editorial With D2G
June 15, 2017

Unwise proposal: On Election Commission seeking contempt powers

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MEANINGS are given in BOLD

Permanent laws cannot be made in response to transient (lasting only for a short time) trends, especially to create a power that is open to abuse. The Election Commission of India’s proposal to the Law Ministry that it be armed with the power to punish for contempt (disrespect) is an unwarranted and poorly thought-out response to some strident (harsh) accusations of partisan (a strong supporter of a party) functioning, mainly from political parties that had lost in the electoral arena.

With democratic practices evolving over time, even the power to punish for contempt vested (confer on someone) in the judiciary has come under question, with many wondering whether this relic of a bygone (belonging to an earlier time) age should be retained. Even superior courts, empowered to act under the Contempt of Courts Act, 1971, are often advised to use it only sparingly. Against this backdrop, for a multi-member Election Commission, which enjoys a high degree of public confidence and a reputation for impartiality, to ask that it be clothed with the powers of a high court to punish both civil and criminal contempt is a travesty (a false or distorted representation) of our open and democratic system.

Civil contempt pertains (related to) to wilful disobedience of court orders, and giving the ECI the power to enforce its orders may be an idea worth debating. However, it will be very harmful to free speech and fair criticism if the ECI is given the power to punish for criminal contempt on grounds that something had “scandalised” (to shock or horrify by something considered immoral or improper) it or tended to lower its authority — a vague (indefinite or uncertain) and subjective provision that should have no place in contempt law. It is a matter of concern that the ECI appears to be preparing the ground to use its power to curtail (cut down or reduce) free speech; its letter refers to some parties “taking advantage of the right to freedom of expression” to question the conduct of elections.

There is a marked difference between the judiciary and the Election Commission. Judges have a tradition of not responding publicly to criticism. As Lord Denning observed in 1968, they “cannot enter into public controversy”. The ECI, on the other hand, responds robustly (in a sturdy and strong way) as and when allegations about the conduct of elections surface. There is no reason to believe that public confidence in the ECI will be shaken or its superintendence (to oversee and manage), direction and control over the election process undermined by criticism, however tendentious (expressing or intending to promote a particular cause or point of view, especially a controversial one) or calumnious (the act of uttering false charges) it may be.

It is true that parties have made unfair accusations about the conduct of elections, or more accurately, about the outcome of elections that went against them. The Aam Aadmi Party has made it a sort of mission to run down the electronic voting system. Not stopping with skepticism (doubtfulness) of the claim that the electronic voting machines are invulnerable, it has alleged ECI members are politically aligned to the ruling party at the Centre. However, it cannot be forgotten that reforms such as the introduction of a verifiable paper trail came about only because somebody voiced criticism and suspicion. Throttling (controlling) criticism in the name of punishing contempt will only cut off feedback.

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